Removal and Retention – Arts 3 and 12
The court was of the view that the mother was not authorized to move with the children to Germany without the father’s prior consent. The court’s emergency decision was not associated with permission to move with the children to Germany; furthermore, the decision was only provisional. The mother avoided the court proceedings which were ongoing to review the decision, by leaving the U.S. before the second hearing. In any event, the children can be said to have been wrongfully retained once the father had had sole rights of custody transferred to him on 31 December 2018, and certainly once the order had been issued on 1 April 2019. Also, in the view of the court, the children had not established a new habitual place of residence during their three-month stay in Germany, and the mother should have expected that the provisional transfer of custody would be modified during the ongoing court proceedings, meaning that it was to be expected that her actions would be adjudged to be wrongful retention as per ECJ precedent.
Grave Risk – Art. 13(1)(b)
The fact that a U.S. court, after the submission of a report from a child psychiatric clinic left the joint custody arrangement unaltered and awarded the father a right to have access to the children unsupervised was viewed by the Court to mean that the allegations of sexual abuse were without foundation and thus could not prevent the return. The child’s alleged disclosure as to the perpetrator, which happened to occur the day before the hearing, along with further details of an event which had occurred two years previously, was said to be utterly implausible and not worthy of any further consideration.
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